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Paying the Price

Desperate times call for desperate measures, and hospitals are facing desperate times. Squeezed between rising costs and reimbursement pressure from insurers, the provider side of health care has looked for savings wherever they can be found. Sometimes, as in the case of Duke Hospital, this means firing one of the most respected nurses you've got, then covering your tracks.

When nurses at Duke University Medical Center mounted a campaign to unionize in 2001, Duke fought the organizing effort tooth and claw. They hired the likes of Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation's leading labor law firms, to thwart the campaign. Based in Greenville, S.C., Ogletree, Deakins represents more than half of the nation's Fortune 500 companies and has won all but a handful of the union elections in which it has engaged. Alternately sweet-talking the nurses with promises of better days to come and warning them of the dangers in signing on with the union, Duke convinced a handy majority of nurses to vote no.

The hefty fees Ogletree, Deakins commanded were doubtless a bargain for Duke. As has happened at hospitals across the country, nurses had faced forced overtime, higher nurse-patient ratios, benefit cutbacks and other adverse changes that saved the hospital money but made their lives miserable. Attempts to engage in dialogue with Duke about working conditions had repeatedly been rebuffed. Say what you will about modern unions, the collective bargaining process has resulted in better working conditions--and increased costs for employers--far more often than not.

How much Duke spent in legal bills is not a matter of public record, but an estimate in the seven-figure range would not be outrageous. The Duke Chronicle reported that the university spent almost $1 million in 1995 to stop the unionization of its bus drivers--all dozen of them. The prospect of more than 2,000 workers agitating with one voice about wages and benefits would open the wallet of even the stingiest employers.

And according to at least one prominent source, the Duke University Health System board of directors wanted the union gone--at any price. Former Durham County Commissioner Joe Bowser, who sat on the board in 2001, recalls a meeting during which hospital administrators were told to "do whatever you have to do to keep the union out." The sentiments were printed in a Herald-Sun column, prompting a strong denial by then-hospital CEO Michael Israel. But Bowser says the story was accurate. "The comment definitely was made," he says. "There's no ifs, ands or buts about it."

Still, the prospect of having Ogletree, Deakins on the permanent payroll is equally daunting for a cost-conscious employer, so when Duke administrators caught wind last May that the nurses were gearing for another union campaign, they cringed. Duke Hospital Chief Executive Officer William Fulkerson met with one of the most outspoken nurse organizers, Connie Donahue, and expressed concerns about another union drive. Donahue says she told Fulkerson that the hospital had not lived up to its promises from the last campaign, and that she and other nurses intended to proceed with the effort. Fulkerson, she says, responded that he couldn't deal with another unionization battle.

A couple of months later, Donahue was gone.

Ridding the hospital of Donahue couldn't have been an easy call for an institution that, like all hospitals, has had trouble retaining qualified staff in tough economic times. Donahue had spent all of her 17 years at Duke in the highly stressful surgical intensive care unit and was widely considered one of the most knowledgeable and helpful nurses in the unit. "She took a leadership role," says a doctor who worked with Donahue for two years. "She would direct and assist other nurses in the care they were expected to provide," and even offer doctors guidance in deciding when intervention was needed. "That's an important task for nurses in general, and ICU nurses in particular," the doctor says.

It's illegal to fire an employee for union activity, but Duke offered another reason for terminating her: Donahue had "abandoned" a patient during a procedure, endangering the patient's well-being. Donahue has sued Duke, saying that the hospital fired her for her union work. Duke officials declined to comment on the pending litigation.

According to court documents, the incident in question took place in June, just weeks after the meeting with Fulkerson. Donahue wheeled a patient who was having post-surgical complications from the ICU down to the radiology unit for a CT scan. Two doctors and a respiratory therapist were also present. While waiting for the doctors to drain fluid from the patient, Donahue had to use the bathroom--she suffers from "hyperactive bladder syndrome" and must often take breaks to relieve herself--and asked the respiratory therapist to watch the patient's vital signs in her absence. Donahue tacked a cigarette onto the break and returned to radiology after an absence of 11 minutes. The patient, she says, was stable as before. "If I believed in my head and in my gut that there was any risk to that patient, I would have peed on myself," Donahue says.

About a month afterward, Donahue was told by a superior that a complaint had been filed against her for the incident, and that her actions had created a "safety issue." A few days later, the hospital placed her on administrative leave. Donahue complained that she was being targeted for her prominent role in the union drive, that the hospital was indeed doing "whatever you have to do" to avoid unionization. A few days after that, she got the pink slip.

At the time of her firing, the lawsuit claims, no written policy covered the circumstances surrounding the incident. Each unit has its own set of policy guidelines; in the surgical intensive care unit, the rules were written in a book called "SICU at a glance." But after Donahue was fired, a new policy was inserted into the book. New policies are usually dated and referenced by the committee that approved the change, but this one lacked any date or notation. Based on its response to the lawsuit, Duke will apparently claim that the policy existed before the infraction, and that Donahue's violation was thus covered in the policy manual.

Sources at the hospital, however, confirm Donahue's account of the policy insertion. Which casts doubt not only on Duke's contentions, but its integrity. After all, if the hospital is willing to cover its tracks by creating a policy after the fact, to what lengths won't administrators go to protect their interests?

The lawsuit may offer answers to that question as well. One of Donahue's claims is that far more egregious offenses than hers went unpunished or resulted in disciplinary actions far short of firing. Court documents cite numerous examples, including one incident in which a nurse was merely transferred to another unit despite accidentally switching medications for a patient, resulting in irreversible brain damage. Another nurse failed to give drugs to a liver transplant patient in a timely fashion, which the transplant surgeon said caused rejection of the liver; the nurse received only a written warning.

And while hospital sources say that Donahue's actions may have been deserving of a reprimand, they can offer plenty of examples of their own to supplement those in the lawsuit. "There are lots of them," says one nurse, who asked not to be identified for fear of retaliation. "I personally know of a nurse that was using narcotics, [who] diverted drugs from a patient to use for herself. She went through rehab but then came back to work."

Though Duke may claim otherwise, it's not just nurses sympathetic to the union who have such tales to tell. A former Duke Hospital resident who worked with Donahue and still practices in the area believes that Donahue's infraction was "at worst, middle of the road. It's certainly not the most egregious thing I've heard of being done at Duke."

Revelations of malpractice are something that Duke will doubtless try and avoid during the legal proceedings. On the other hand, the hospital may have to argue that Donahue's bathroom break did result in harm to the patient; citing confidentiality concerns, Donahue declined to say what eventually happened to the patient, but based on her court claims it's likely that no malpractice charge was ever filed in the case.

The cost to Duke of such revelations could be huge. To negotiate this potential minefield, Duke has retained one of the best law firms in the business--none other than Ogletree, Deakins.

For Duke, however, all the time and money spent on the case may well be worth it. Because at least for the time being, the hospital won't have to worry about one of its most pressing concerns: a nurses union. Marge Dooley, a nurse who worked with Donahue on the campaign, says she wants to rekindle the union flame but is having trouble convincing her co-workers to help, at least in a leadership capacity. Nurses, Dooley says, have absorbed the lesson from Donahue's firing. "People are scared," she says. "Before it happened to Connie, I would have said there's no way Duke would be foolish enough to retaliate against us. Now, I don't know." EndBlock

Contact Burtman: burtman@indy week.com


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